[Deathpenalty] death penalty news----CALIF., NEB., MD., VA.

[Rick Halperin]

Jan. 28



CALIFORNIA:

Arnold Schwarzenegger, Jerry Brown will ask U.S. to end oversight of
California prisons---Officials say receivership has become a government
unto itself. Overseer says such action would prolong unnecessary deaths
and suffering among inmates.


Gov. Arnold Schwarzenegger and Atty. Gen. Jerry Brown will ask a federal
judge today to end court oversight of healthcare in California prisons and
return the inmate medical system to the state's control.

In a filing with U.S. District Judge Thelton E. Henderson, who seized
prison healthcare from the state nearly 3 years ago, Brown and
Schwarzenegger administration officials are expected to contend that the
receivership has exceeded its authority and violated federal law with an
$8-billion plan to renovate healthcare clinics and build seven "holistic"
facilities for 10,000 inmates.

"We believe the receivership has become a government unto itself,
operating without accountability, without public scrutiny and without
clear standards," Brown said Tuesday. "Tremendous sums have been spent,
and tremendous progress has been made, but we feel that it's time to place
the responsibility on the director of corrections and not have this
parallel government operating on its own."

The state intends to ask Henderson to replace the receiver with a special
master who could report on the state's progress and work with state
officials but would not have the same broad powers.

J. Clark Kelso, the receiver appointed by Henderson, has the ability to
hire, fire and manage employees and make contracts. He oversees $1.8
billion in state spending annually to overhaul a healthcare system that
the judge ruled was causing many inmates to die needlessly.

Although Schwarzenegger and his aides initially cooperated with the
receiver, their relationship has soured. And as state officials grapple
with a $42-billion budget gap projected by the middle of next year, they
have clashed with Kelso. The receiver has been unable to secure funding
for his construction plans so far in the Legislature, from the governor or
in federal court.

In an interview, Kelso called the state's impending move "outrageous." He
said he had sought a review from the state for all of his efforts, and
that only months ago the Schwarzenegger administration had asked him to
move ahead with construction. Kelso said he expected that the judge would
reject the state's request because the receivership is the only entity
that has improved inmates' healthcare.

State officials have conceded in the past that they cannot do that job, he
said, and officials' promises of change are empty.

"Terminating the receivership would only increase and prolong unnecessary
deaths and suffering, and the state, the governor and the attorney general
would be responsible for that," Kelso said.

In a filing to Henderson earlier this month, he took a swipe at
Schwarzenegger for reneging on pledges of cooperation, writing that "court
orders are not Hollywood contracts . . . where promises are cheaply given
and then ignored when convenient."

And in a jab at Brown, who is exploring a run for governor, Kelso wrote
that "public officials who choose to run their political campaigns for
higher office" by trying to block judges' orders "actively promote
disrespect for the courts."

Brown, who has adamantly fought Kelso's plans for months in court, said he
was shocked that the receiver would politicize the issue.

The receiver's plans, he said, violate the federal Prison Litigation
Reform Act, which prohibits prison construction from being ordered by a
judge. The attorney general also said Kelso's proposed facilities flout
the federal requirements that he use the least intrusive means to improve
healthcare.

State officials estimate that the facilities would cost up to $2.3 billion
a year to operate, and draft plans have included exercise rooms, music and
art therapy areas, natural light and landscaping.

"The environment should be 'holistic,' " Kelso's plan says.

Schwarzenegger's corrections secretary, Matthew Cate, said the
receivership has already met many of its initial goals by filling
vacancies for doctors and nurses, improving the skill level of the
providers and ensuring better access to care. Cate and other state
officials say California's expenditures on prison medical care, more than
$10,000 per inmate, dwarf the spending levels in other states.

If he were to take control from Kelso, Cate said, he would analyze the
receiver's construction proposals and other factors before deciding if any
new medical facilities are needed.

"We certainly wouldn't do it in the way he has currently proposed," Cate
said. "The receiver's plans obviously have a lot of good aspects to them,
but they're definitely not cheap."

Henderson has already embraced Kelso's plans, ordering the state last year
to turn over $250 million to the receiver. The state protested that ruling
in the U.S. 9th Circuit Court of Appeals, where it remains pending.

Donald Specter, director of the nonprofit Prison Law Office, which brought
the inmate lawsuit that led to the receivership, said the attorney general
has taken contradictory positions on the receivership. In a related
federal trial on prison overcrowding, the state's lawyers were positive in
citing Kelso's efforts as a reason that a 3-judge panel should not cap the
inmate population.

State officials have long expressed hope that even if Henderson rejects
their arguments, they may ultimately receive favorable rulings in the U.S.
Supreme Court with respect to the receivership and the overcrowding issue.

Specter said that even though there are "5 very conservative judges" on
the Supreme Court, they might rule against the state.

"I wouldn't be surprised if they are kind of shocked at the level of harm
and injury that prisoners are suffering," he said.

**********************

Supreme Court rejects suit in Long Beach case----The decision, in a case
where a man was wrongfully convicted of murder, broadens protections for
district attorneys and other chief prosecutors.


The Supreme Court on Monday threw out a lawsuit by a Los Angeles man
wrongfully convicted of murder and gave district attorneys a broad shield
against being sued even if their management mistakes send an innocent
person to prison.

Thomas L. Goldstein, a former Marine convicted in a 1979 shooting in Long
Beach, spent 24 years in prison largely on the word of a heroin addict who
had worked as a jailhouse informant for police and prosecutors. Edward F.
Fink lied on the witness stand when he denied receiving a benefit for
testifying for police, a judge found.

Goldstein was freed in 2004, and he sued former Los Angeles County Dist.
Atty. John K. Van de Kamp and top deputy Curt Livesay, contending they
allowed prosecutors to regularly use jailhouse informants and did not take
steps to make sure they were telling the truth.

In Goldstein's case, the trial prosecutor did not know Fink was lying
because other prosecutors in the sprawling district attorney's office did
not share information.

The Supreme Court mostly set aside the facts of Goldstein's case and
focused on the potential harm of allowing top prosecutors to be sued.
District attorneys who are managing teams of prosecutors should not face
the fear they might be sued years later by resentful suspects, the
justices said.

In the past, the court said trial prosecutors were entitled to absolute
immunity for their courtroom work. In Monday's ruling in Van de Kamp vs.
Goldstein, the high court extended that shield to cover district attorneys
and other chief prosecutors for any actions that involve prosecutions and
trials.

Last year, the U.S. 9th Circuit Court of Appeals in San Francisco said top
prosecutors could be sued for "administrative" failures. The decision
rejected Van de Kamp's claim of immunity and cleared Goldstein's lawsuit
to proceed.

But the Supreme Court rejected the distinction between administrative and
management tasks and said management of trial-related information was a
prosecution function.

"We conclude that a prosecutor's absolute immunity extends to all these
claims" about tracking jailhouse informants because they are "directly
connected with the conduct of a trial," Justice Stephen G. Breyer said.

It was the 4th decision in a week siding with police and prosecutors. Last
week, the court extended the so-called exclusionary rule and said tainted
evidence could be used if police made an honest mistake in searching a
suspect. In that case, an officer acted on an arrest warrant that should
have been removed from a police computer.

That same day, the court also threw out a lawsuit against police in Utah
who, based on the word of an informant, burst into a house without a
warrant. The justices did not decide whether the search was illegal but
concluded that police were immune from being sued.

In a 2nd decision Monday, the court said police could stop and frisk a
passenger in a stopped car, even if there was no reason to suspect the
passenger had done anything wrong.

The ruling in favor of district attorneys is consistent with the Supreme
Court's trend of limiting lawsuits, especially against the government.

Goldstein was living in Long Beach when he was arrested in a nighttime
shooting in an alley near his home.

Several eyewitnesses gave conflicting descriptions. Some said the shooter
was black. One witness pointed to Goldstein, who is white.

Investigators arranged to put Fink in a jail cell with Goldstein.

A heroin addict, Fink had been frequently arrested but received reduced
sentences for helping the police. He later testified that Goldstein had
confessed to the killing.

Years after the conviction, a grand jury in Los Angeles issued a report on
the misuse of jailhouse informants and forced a series of changes by
police and prosecutors.

"They are rarely used now," Van de Kamp said.

Despite the lawsuit, Goldstein and Van de Kamp said they had amiable
conversations.

"I like Van de Kamp," Goldstein said. "He has worked for the fair
administration of justice. He's done a lot for California's system of
justice."

Van de Kamp was district attorney from 1976 to 1982, and California
attorney general from 1983 to 1991.

More recently, he has chaired the California Commission on the Fair
Administration of Justice.

Van de Kamp called the decision "absolutely correct." A ruling in favor of
Goldstein "would have opened the door to a flood of questionable
lawsuits," he said.

"At the same time, prosecutors continue to have an ethical obligation to
ensure fair convictions. There's a lot more they can work on to achieve
that."

Goldstein, 60, said he was upset by the decision. "This case was an
opportunity for the Supreme Court to rule that every D.A.'s office in
America should be required to have an information system on jailhouse
informants," he said. "If that happened, there would be fewer wrongful
convictions."

Goldstein said he had a separate suit pending in federal court against
Long Beach and 4 detectives.

***********************************

Wider scope of backlog in L.A. County sheriff's DNA testing is
revealed----815 sexual assault cases with untested DNA and no suspects
have been tallied so far; statute has expired on 51 of them.


DNA evidence has gone untested in more than 800 rape and sexual assault
cases even though detectives from the Los Angeles County Sheriff's
Department and other smaller agencies have no suspects in those crimes,
authorities acknowledged Tuesday.

The number is far larger than officials had anticipated and revealed a
breakdown in the way the Sheriff's Department went about testing genetic
evidence until recent reforms were enacted. For months, sheriff's
officials sought to downplay concerns over a massive backlog of untested
DNA evidence by suggesting that the crimes had been resolved by other
means.


The promise and perils of DNA evidenceThe danger of DNA: It isn't perfect

L.A. County sheriff's DNA backlog detailed

Compounding the problem was the revelation that in 51 of the 815 cases
tallied so far, the genetic evidence has sat untested in county storage
freezers for more than a decade -- so long that state laws now prohibit
officials from arresting anyone even if belated genetic testing were to
definitively identify a suspect.

"You've got a bunch of evidence sitting there that is potentially a
smoking gun," said L.A. County Supervisor Zev Yaroslavsky to a contrite
Cmdr. Earl M. Shields, who oversees the department's Technical Services
division. "It could be the silver bullet to getting a suspect in a sexual
assault case, and it's just sitting there."

Shields reported the troubling figures as part of a presentation to county
supervisors on the sheriff's ongoing attempt to work through a backlog of
untested samples of semen, saliva, blood and other genetic evidence
collected from victims after an alleged sexual attack. Currently 4,738 of
the so-called sexual assault kits in county storage facilities remain
untested -- about 20% of them from other police agencies in the county
that rely on the sheriff's crime laboratory for DNA analysis.

Sheriff's officials have managed to gather information on only about
two-thirds of the backlogged cases so far, meaning that the number of
investigations without any suspects or those that have fallen out of
statute is likely to rise.

Until late last year, the Sheriff's Department had followed a policy of
testing DNA evidence only when investigators in the case requested it.
After coming under pressure from advocacy groups and the Board of
Supervisors about the growing backlog, Sheriff Lee Baca announced in
November that the department's lab would test DNA evidence in all cases
regardless of whether the analysis was requested.

At the time, the Sheriff's Department -- as well as the Los Angeles Police
Department, which came under similar scrutiny -- tried to minimize the
significance of the size of the backlog. Both agencies indicated that the
vast majority of untested kits were from cases in which investigators had
determined the genetic evidence was not needed.

In November, Shields told supervisors that he expected an inventory of the
sheriff's backlog would uncover very few, if any, examples in which
investigators had no leads on suspects and had not asked for DNA testing.
"There should not be any [such] cases," he said. "We're hoping that that
number will be zero."

On Tuesday he conceded under questioning from Yaroslavsky that "we were
hoping the number would be much smaller." Without detailed information on
each investigation, Shields was at a loss to explain why so many
investigators had not asked for the evidence to be tested. He speculated
they might have decided they "didn't have a valid, prosecutable case"
because the accuser recanted or other fundamental problems arose.

"It was a judgment call on the part of the investigator," he said.

Sarah Tofte, a researcher with Human Rights Watch who has been pressing
local law enforcement agencies around the country to address backlogs,
questioned that logic. "Investigators may think that a victim's account
lacks some veracity," she said, "but when someone reports to police that
she's been raped, the default should always be, 'Let's test this kit and
see what we find.' "

Unexamined evidence kits hold potentially crucial information. Through a
complex scientific process, DNA analysts can extract a person's genetic
code from the collected samples and compare it to those of known felons
that are kept in federal and state databases. When the DNA sample
collected at a crime scene or from a victim's body matches a DNA profile
of someone in the database, it can offer prosecutors nearly irrefutable
proof of the person's guilt. The evidence can also be used to confirm that
someone has not falsely confessed to a crime or link someone to other
unsolved cases.

LAPD Deputy Chief Charlie Beck declined to reveal how many cases for which
LAPD detectives have no suspects and have not pursued DNA testing. A
recent inventory of the LAPD's untested kits has been completed, but the
results are not yet final, he said.

Like the LAPD, the Sheriff's Department has struggled to devise a
financially feasible plan to eliminate its DNA backlog. Both agencies are
currently increasing the number of in-house lab analysts to handle the
constant influx of new cases, while also plotting out ways to outsource
the backlogged cases to private labs. Each kit costs about $1,000 to
process.

Shields told L.A. County supervisors that he would soon present Baca with
a proposed plan and said it would take "years" to clear the backlog. In an
interview, he declined to provide specifics.

Time is a major factor: More than 100 sheriff's cases are within six
months of reaching the state's 10-year statute of limitations, Shields
reported.

(source for all: Los Angeles Times)






NEBRASKA:

Heineman says state needs to OK lethal injection


Gov. Dave Heineman on Tuesday urged the Legislature to rebuff efforts to
repeal the death penalty and to instead enact lethal injection as the
state's method of execution.

During a press conference call, Heineman said he has no hesitations about
capital punishment, despite his vote Monday to grant pardons to 5 people
wrongfully convicted in the 1985 slaying of an elderly Beatrice woman. DNA
testing cleared them of involvement in the woman's slaying. "DNA gives us
the opportunity to prove someone is guilty beyond a reasonable doubt," he
said. "That's the way we ought to use it."

"There's no doubt in my mind that we need the death penalty,' he said,
citing the murders of 5 people in a botched bank robbery in Norfolk in
2002.

He said that death penalty opponents have been given ample opportunity in
the Legislature to repeal the death penalty, with it coming up for debate
3 times during the last legislative session.

"Now's the time to have serious and thoughtful debate about implementing a
legally acceptable method," he said. "We need to get this situation
rectified."

Although Nebraska has the death penalty on its law books, it has lacked a
legal method for carrying out executions since the Nebraska Supreme Court
ruled the electric chair unconstitutional nearly 1 year ago.

(source: Omaha World-Herald)






MARYLAND:

Racial Disparities and Costs Make Lawmakers Revisit Death Penalty


As the Maryland General Assembly meets from Jan. 14 through Apr. 13., Gov.
Martin OMalley (D) is aggressively pushing for the repeal of the states
death penalty. OMalley's pursuit to eliminate capitol punishment in the
state directly followed the release of the Maryland Commission on Capitol
Punishments Final Report to the General Assembly on Dec. 12.

"This is a very personal issue for members of the General Assembly,
families of victims, law enforcement and the public, but it is my hope
that we can all take the time to review the facts presented in this report
thoroughly and with an open mind," O'Malley said.

According to the commission's Final Report, the implementation of the
death penalty in Maryland has been tainted with racial and geographic
disparities, riddled with error beyond reform and is too expensive and
ineffective as a deterrent to preventing crime.

Chair Benjamin R. Civiletti, the former U.S. Attorney General, senior
partner at Venable LLP; Sen. Jamie Raskin (D); and Kathy C. ODonnell,
Chief Attorney of Maryland are the leading members of the Maryland
Commission on Capitol Punishment.

The commission's research showed that cases in which African American
offenders killed Caucasian victims, they are almost 2 1/2 times more
likely to have the death penalty imposed than in cases where Caucasian
offenders killed Caucasian victims.

According to the Final Report to the General Assembly, 1,125 death row
executions and 130 exonerations took place nationwide between 1995-2007.
Furthermore, for every 8.7 death row executions, 1 inmate has been
exonerated. The reversal rate for capital cases in Maryland outpaces that
of many other jurisdictions, totaling 80 % between 1995-2007.

Since 1978, after the reinstatement of the death penalty in Maryland,
there have been 353 death notices issued, 215 death notice cases went to
trial and 77 death sentences issued, according to the commissions report.
The state placed a moratorium on Capital punishment in December 2006 as a
result of the Court of Appeals, equivalent to the Supreme Court in other
states, decided that the lethal injection method was not adopted properly,
according to an article in the Washington Post.

The commission's report also found that the death penalty is costly and
ineffective.

The Urban Institute, a nonpartisan economic and social policy research
organization, conducted a study entitled "The Cost of the Death Penalty"
that found that death row costs could range from $1.1 million to $3
million per capital-eligible case.

Although The Urban Institute conducts research that supports the findings
in the Maryland Commission on Capitol Punishments Final Report to the
General Assembly, not all government officials agree with the methodology
the organization used in its study.

"I'm not actually sure I share the view on the methodology that was used
in [the Urban Institute study], but I do think it's clear that there are
to be additional expenses, and we've seen those when we sought death
penalty cases in our office," Glenn Ivey, State Attorney for Prince
Georges County, said.

Anti-death penalty organizations like the Maryland Citizens Against State
Executions disagreed with the implementation of the death penalty because
it is an unnecessary expense, as well as for other moral reasons.

"What have Maryland's taxpayers gotten for their $186 million? A system
that has clogged our courts, delays justice for victims' families, and
risks execution of an innocent person," Jane M. Henderson, executive
director of Maryland Citizens Against State Executions, said.

Members of various faith-based communities including Protestants, Jews,
Muslims and Catholics in Maryland formed the Interfaith Coalition to End
the Death Penalty advocacy campaign to promote the abolishment of Capital
punishment after a number of religious leaders testified before the
commission, according to an article in the Frederick News-Post.

Clergy representing more than 1,000 congregations across Maryland sent
letters to OMalley and the General Assembly advocating the repeal of "the
law allowing for the state execution of men and women," according to an
article in the Frederick News-Post.

"Common to all of our faiths in the belief in the sanctity of life and
forgiveness, we believe that no one is beyond redemption. We are called to
restore people to wholeness in society," the ICEDPs letter stated. "Even
for one who has murderednever should we or our government on our behalf
deny the prospect of redemption."

(source: Washington Informer)






VIRGINIA:

Bill allowing death penalty for murder accomplices clears
Senate----Legislation likely to be vetoed by Gov. Kaine


A local legislator's bill that would allow the death penalty for
accomplices to murder who had the intent to kill but didn't pull the
trigger has again cleared the Virginia Senate.

But Senate Bill 961, patroned by Sen. Mark Obenshain, R-Harrisonburg,
likely has its own date with execution, in the form of a veto by
Democratic Gov. Timothy M. Kaine.

Obenshain has backed identical legislation for the past 3 years, winning
passage in both the House and Senate.

Tuesday's vote was 24-16, 3 votes short of the 27 needed to override a
gubernatorial veto.

Speaking on the floor of the Senate, Obenshain said his bill fills a
glaring gap in Virginia's capital punishment laws.

"The poster child for this bill is none other than Charles Manson,"
Obenshain said.

The object of the bill is to allow prosecutors to seek the death penalty
for those who are directly responsible for murder, even if they don't do
the actual killing.

"He did not wield the knife, but no one in the Tate-LaBianca murders had a
blacker heart," Obenshain said.

Closer to home, the 2002 D.C. sniper attacks illustrate a glaring hole in
the commonwealth's laws, he said.

If not for a recently enacted anti-terrorism statute, Virginia could not
have sought the death penalty for John Allen Muhammad -- the man who
instructed then-juvenile Lee Boyd Malvo to shoot random people at varying
locations around D.C., Maryland and Virginia.

But Obenshain's bill is the wrong way to approach death penalty issues,
argued Sen. John Edwards, D-Roanoke.

Each time the commonwealth has expanded its use of the ultimate
punishment, it has been done in a deliberate, studious manner, Edwards
said.

Virginia might carry out the 2nd-highest number of executions in the
country, but legislators have traditionally been very stingy in allowing
expansions since 1976, when the U.S. Supreme Court re-authorized capital
punishment.

"What we're doing here is going beyond what we have traditionally and
historically done in Virginia," Edwards argued. "We are stretching it much
wider than we have ever done before."

In the end, Tuesday's vote will likely be moot unless 3 of the senators
against the bill change their minds.

Kaine, a death penalty opponent, has vetoed the measure every time it
reached his desk -- and his thinking hasn't changed since last year, when
he told legislators that he didn't think the measure was necessary.

"He's been opposed to this triggerman bill since the beginning, and
nothing has changed," said spokesman Gordon Hickey.

The bill now heads to the House of Delegates, where it has passed with
wide, veto-proof margins in the past.

(source: Northern Virginia Daily)